In Re: A.I. George

Suryamurthy, J.—This is a Criminal Revision Petition against the order of the learned Sessions Judge of Coimbatore West Division

dismissing a Criminal Miscellaneous Petition filed by the revision-petitioner herein against the order of the learned Judicial Second Class Magistrate

No. 2, Coimbatore confiscating the Ambassador Car bearing, No. TNE 770 belonging to the petitioner.

One Thomas and Verghease were charge sheeted by the Sub Inspector of Police, Madukkarai for an offence punishable under S.4(1)(a) of the

Tamil Nadu Prohibition Act on the allegation that on 31st July 1975 at about 4.15 A.M. at Walayar check post near Madukkarai, they were found

transporting about 222 half bottles and 2 quarter bottles of Mc Dowells brandy in the said Ambassador car. Both the accused were found, guilty

and sentenced to undergo rigorous imprisonment for six months each by the Judicial Second Class Magistrate. But on appeal, the learned Chief

Judicial Magistrate of Coimbatore and Nilgiris at Coimbatore set aside the conviction and the sentence imposed on the second accused Verghese

and acquitted him.

Pending trial of the case, possession of the car was handed over to the revision petitioner on a petition filed by him subject to the condition that

he should produce the car whenever he was called upon to do so. After the two accused were convicted in the aforesaid case, the learned Judicial

Second Class Magistrate took proceedings suo motu and called upon the petitioner to produce the car before him, and after hearing the petitioner,

directed that the car be confiscated to the State. Against that order of the learned Judicial Second Class Magistrate, a Criminal Miscellaneous

Petition was filed before the learned Sessions Judge of Coimbatore West Division. The order of confiscation was confirmed by the learned

Sessions Judge.

It is admitted that the car belongs to the petitioner. It is not disputed by the petitioner that the car was used for transporting about 222 half

bottles and 2 quarter bottles of Mc. Dowell''s brandy at the time and in the manner alleged by the prosecution in C.C. No.4208 of 1975. The

contention of the petitioner is that his brother-in-law borrowed the car from him, that Verghese, the second accused, who is the son of his brother-

in-law had taken the Car from his father and that whatever might have happened, had happened without his knowledge, or even consent and that

the second accused having been acquitted, there is no justification for confiscating the vehicle.

There is not a scrap of evidence to prove or even to raise a mere suspicion that the petitioner was aware that the vehicle was likely to be used

for the purpose of transporting contraband liquor. The order confiscating the vehicle has been passed under S.13 of the Tamil Nadu Prohibition

Act. By reason of the proviso to sub-section (2) of S.14 of the Act, no car or other vehicle shall be confiscated, if the owner thereof satisfies the

court that he had exercised due care in preventing the commission of the offence. In the instant case, the petitioner had lent the car to his own

brother-in-law. It is not suggested that his brother-in-law had any antecedents which should have aroused the suspicion of the petitioner regarding

the nature of the use to which the vehicle might be put by his brother-in-law or by the son of his brother-in-law. In view of the fact that the son of

the brother-in-law has been acquitted, we have to proceed on the assumption that even the person who borrowed the car was not aware of the

fact that some bottles of liquor had been placed in some concealed receptacles alleged to have been built into the car for the purpose of carrying

such liquor. Such temporary receptacles could easily have been built into the car at short notice by a clever mechanic working expeditiously. That

might probably be the reason why the learned Chief Judicial Magistrate was not prepared to find Verghese guilty of the offence with which he was

charged. The petitioner cannot be said to have been negligent in any sense of the word when he lent his car to his own brother-in-law. Nothing that

was done by the petitioner could be deemed to have been a failure on his part to prevent the commission of the offence. In fact, he could not have

done anything to prevent the commission of the offence after the car left his custody. There was absolutely no evidence before the learned Judicial

Second Class Magistrate to justify the order of confiscation. There was no justification for passing an order of confiscation when the petitioner was

not even an accused in the case. In fact, it is not the case of the prosecution and it never was the case of the prosecution that the petitioner herein

had knowledge or had reason to believe that the vehicle was going to be used for the purpose of transporting liquor. In the circumstances, the

provisions of a penal statute like the Tamil Nadu Prohibition Act will have to be construed in such a manner that a person who has not committed

the offence or abetted the commission of any offence should not be visited with any penalty.

In State of Madhya Pradesh Vs. Azad Bharat Finance Co. and Another, the Supreme Court has laid down that where the conveyance does not

belong to the offender, and the owner of the conveyance has neither authorised the offender to transport opium, nor is there any reason to believe

that the owner knew that his vehicle was likely to be used for transporting contraband opium, the conveyance should not be confiscated because

confiscation in such circumstances would be tantamount to punishing one, who has not committed any offence under the Opium Act. The Supreme

Court further observed that it would be unjust to confiscate the truck of a person if he has no knowledge whatever that the truck was being used

for transporting opium and that is well recognised that if a statute leads to absurdity, hardship or injustice, presumbly not intended, a construction

may be put upon it which modifies the meaning of the words, and even the structure of the sentence. The Supreme Court further held that a penal

statute should, if possible, be construed in such a way that a person who has not committed or abetted any offence should not be visited with a

penalty.

In Maruthamuthu In re, 1966 L.W. (Crl.) 185 Venkataraman, J. has held as follows:

While it is true that the order of confiscation shall not be made if the owner satisfies the Court that he had exercised due care in preventing the

commission of prohibition offence, it does not follow that in a case where he is not able to satisfy the court, the car should be confiscated even

though there is no evidence to prove that the owner had knowledge that the prohibition offence was going to be committed by using the car.

Normally, an order of confiscation will be made only if there is reason to believe that the owner knew that the car was going to be used for

transporting illicit liquor and committing an offence under the Prohibition Act.

In the instant case, there are no circumstances which can lead even to a suspicion that the car was lent by the revision petitioner to his brother-in-

law with the knowledge that it might be used for the purpose of transporting illicit liquor. In the circumstances, the order passed by the learned

Judicial Second Class Magistrate and confirmed by the learned Sessions Judge cannot be sustained. The Criminal Revision Petition is allowed and

the order of confiscation of the car passed by the learned Judicial Second Class Magistrate, No.2, Coimbatore as confirmed by the learned

Sessions Judge of Coimbatore West, Coimbatore, is set aside, and the respondent is directed to return the car to the petitioner. If the car is with

the petitioner, he is permitted to retain the car in his possession.